11.1 Incidental or technical uses are essential to the operation of the internet, networks, and other technologies that facilitate lawful access to copyright material. The ALRC concludes that current exceptions in the Copyright Act are uncertain and do not provide adequate protection for such uses. Such uncertainty has adverse effects on innovation, incentives to build new services and products, and Australia’s competitiveness as a place for technological investment. The current exceptions should be repealed.

11.2 The ALRC recommends that ‘incidental or technical use’ be an illustrative purpose of fair use. A flexible fair use exception will better accommodate technological change and foster lawful innovation and use of copyright material. If fair use is not enacted, a new fair dealing exception should be introduced, and this should include ‘incidental or technical use’ as a prescribed purpose.

11.3 Data and text mining refers to technologies that are used to analyse copyright material for patterns, trends and other useful information. The ALRC concludes that the fair use exception should be used to determine whether data and text mining constitute copyright infringement.